P. v. Diaz

Filed 5/5/06 P. v. Diaz CA6

SEE DISSENTING OPINION

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Matthew James Diaz appeals from a judgment of conviction of second degree burglary (Pen. Code, §§ 459, 460, subd. (b))[1] (count 1) and grand theft (§§ 484, 487, subd. (a)) (count 5) following no contest pleas pursuant to a plea bargain. At first, the court indicated that it was sentencing defendant to two years on count one and a consecutive eight-month term on count five for a total prison term of two years, eight months, which was the negotiated disposition.. The court then revised the sentence by imposing a 16-month term on count one (§§ 18, 461) doubled pursuant to three strikes law (667, subd. (b)-(i); 11790.12) for the same total prison term of two years, eight months. Count five, the theft offense, was reduced to a misdemeanor. (See §§ 17, 489.)

On appeal, defendant argues that he was improperly sentenced under three strikes law because there is a constitutionally significant difference between a "prior conviction" within the meaning of the Apprendi line of cases (Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348]) and a prior juvenile adjudication because a minor has no right to a jury trial in juvenile proceedings.[2] We affirm.

A. Procedural History

On January 26, 2005, a first amended felony complaint was filed against defendant Diaz and a codefendant. The accusatory pleading charged defendant with four counts of burglary of a vehicle (§§ 459, 460, subd. (b)) (counts one through four), two counts of grand theft of personal property of a value over $400 (§§ 484-487, subd. (a)) (counts five and six), and resisting an officer (§ 148, subd. (a)(1)) (count seven). A strike allegation stated that defendant had suffered a juvenile adjudication, an "ADW with 186.22(b)(1) alleged, Penal Code section 245(a)(1) with 186.22(b)(1)(B) allegation," when he was "16 years and older."[3]

On April 14, 2005, the court indicated its understanding that defendant Diaz would be entering a plea in exchange for a 32-month sentence, and submitting the prior to the court for decision because it was a juvenile prior. Before accepting any plea, the court told both defendants: "[E]ach of you has a right with respect to any charges or enhancements to a preliminary examination which is a hearing to determine whether or not there is probable cause to believe the offenses were committed and that the enhancements are true and you committed them. If that determination is made and you are held to answer you have a right to a jury trial on the question of your guilt or innocence [and] as to the truth of enhancements." Defendant Diaz acknowledged and waived his rights to a preliminary hearing and to a jury trial. After indicating that defendant had "a right to a trial on the strike," the court asked, "[i]t is my understanding that you will give up the right and let the court determine whether or not this a strike; is that correct?" Defendant answered, "yes." Defendant pled no contest to the burglary offense alleged in count one and the grand theft offense alleged in count five.

On July 19, 2005, following a brief court trial on the strike allegation, the court found the strike prior "valid." The court sentenced defendant to a total term of two years and eight months consistent with the negotiated plea. (See §§ 18, 461, 667, subds. (b)–(i), 1170.12.)

B. Use of a Prior Juvenile Adjudication as a Strike

Defendant argues that the use of the prior juvenile adjudication to increase his sentence under three strikes law violates the United States Supreme Court's holdings in Apprendi v. New Jersey, supra, 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531], and Shepard v. U.S. (2005) 544 U.S. 13 [125 S.Ct. 1254] because he had no right to a jury trial in the prior juvenile proceeding. Defendant argues that the Ninth Circuit Court of Appeals in United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 correctly concluded that Apprendi's "prior conviction" exception is limited to proceedings involving both the right to jury trial and the standard of proof beyond a reasonable doubt and excludes nonjury juvenile adjudications. (See United States v. Tighe, supra, 266 F.3d at pp. 1194-1195.)

This court has already rejected similar arguments in People v Lee (2003) 111 Cal.App.4th 1310 and People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817. Nevertheless, defendant asserts that those cases were incorrectly decided and we should now adopt the analysis of the dissent in Lee, which agreed with the reasoning in Tighe. (People v Lee, supra, 111 Cal.App.4th at p. 1320.)

In Lee, we reviewed the cases, both state and federal, that had rejected the reasoning of the Tighe majority. (People v. Lee, supra, 111 Cal.App.4th at pp. 1314-1316.) We concluded that "the procedural safeguards provided in juvenile adjudications are sufficient to satisfy the concerns of the Supreme Court in Apprendi." (Id. at p. 1316.) We noted that "[a] juvenile has the right to notice of the charges against him or her, the right to counsel, the privilege against self-incrimination, the right to confrontation and cross-examination, the protection against double jeopardy, and the allegation must be proved beyond a reasonable doubt. (See Fowler, supra, 72 Cal.App.4th at p. 585 . . . .)" (Id. at p. 1316.)

In Andrades, supra, 113 Cal.App.4th 817, 830, we repeated the majority analysis from Lee and added a discussion of People v. Smith (2003) 110 Cal.App.4th 1072, which held that "a juvenile adjudication may be used as a strike to enhance an adult offender's sentence notwithstanding the absence of the right to a jury trial in delinquency proceedings." (Id. at p. 1075.) The Smith court observed that "nothing in Apprendi or the cases upon which it relied limited the Legislature's authority to identify a prior juvenile adjudication involving a serious or violent offense or any other fact it deems reasonably relevant for purposes of imposing an increased sentence [citation], provided the existence of the elements it has specified for sentence enhancement (other than a prior conviction) are submitted to a jury and found to exist beyond a reasonable doubt. [Citation.]" (Id. at p. 1078.) We again concluded in Andrades that "a prior juvenile adjudication may constitutionally be used as a 'strike' despite the fact that there is no right to a jury trial in juvenile proceedings." (113 Cal.App.4th at p. 834.)

None of the Supreme Court decisions cited by defendant undermines our analyses in Lee and Andrades or overrules Almendarez-Torres v. U.S. (1998) 523 U.S. 224 (Almendarez-Torres). In Almendarez-Torres, the court determined that a federal law applicable to the crime of unlawful reentry of a deported alien was a penalty provision, which authorized an enhanced sentence, rather than a separate crime. (Id. at pp. 226-227.) The court rejected a constitutional claim that recidivism was required to be treated as an element of the offense. (Id. at p. 247.) It stated: "[T]o hold that the Constitution requires that recidivism be deemed an 'element' of petitioner's offense would mark an abrupt departure from a longstanding tradition of treating recidivism as 'go[ing] to the punishment only.' (Graham, supra, at 629, 32 S.Ct., at 587-588.)" (Id. at p. 244.)

In Jones v. U.S. (1999) 526 U.S. 227, the Supreme Court considered a federal carjacking statute providing for higher penalties when the carjacking resulted in serious bodily injury or death. (Id. at p. 230.) To avoid serious constitutional questions, the Supreme Court interpreted the statute as defining three distinct offenses whose elements were required to be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict rather than as defining a single crime with a choice of three maximum penalties, two of which involved factors exempt from the requirements of charge and jury verdict. (Id. at pp. 229, 251-252.) The high court distinguished Almendarez-Torres.

The Jones Court emphasized that the holding in Almendarez-Torres "rested in substantial part on the tradition of regarding recidivism as a sentencing factor, not as an element to be set out in the indictment." (526 U.S. at p. 249.) It explained: "The Court's repeated emphasis on the distinctive significance of recidivism leaves no question that the Court regarded that fact as potentially distinguishable for constitutional purposes from other facts that might extend the range of possible sentencing. See id., at 230, 118 S.Ct. 1219 ('At the outset, we note that the relevant statutory subject matter is recidivism'); ibid. ('With recidivism as the subject matter in mind, we turn to the statute's language'); id., at 243, 118 S.Ct. 1219 ('First, the sentencing factor at issue here--recidivism--is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence'); id., at 245, 118 S.Ct. 1219 (distinguishing McMillan 'in light of the particular sentencing factor at issue in this case--recidivism'). One basis for that possible constitutional distinctiveness is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense, and certainly unlike the factor before us in this case, a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." (Id. at p. 249.)

Subsequently in Apprendi, the U.S. Supreme Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. . . . '[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.' 526 U.S., at 252-253, 119 S.Ct. 1215 (opinion of STEVENS, J.); see also id., at 253, 119 S.Ct. 1215 (opinion of SCALIA, J.)." (Apprendi v. New Jersey, supra, 530 U.S. at p. 490, fn. omitted.)

The Apprendi court did not overrule Almendarez-Torres, supra, 523 U.S. 224. Rather, the court stated: "[T]here is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact [related to commission of the offense itself] under a lesser standard of proof." (530 U.S. at p. 496.)

In Blakely, the Court determined: "[T]he 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. See Ring, supra, at 602, 122 S.Ct. 2428 (' "the maximum he would receive if punished according to the facts reflected in the jury verdict alone" ' (quoting Apprendi, supra, at 483, 120 S.Ct. 2348)); Harris v. United States, 536 U.S. 545, 563, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion) (same); cf. Apprendi, supra, at 488, 120 S.Ct. 2348 (facts admitted by the defendant). In other words, the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,' Bishop, supra, § 87, at 55, and the judge exceeds his proper authority." (Blakely v. Washington, supra, 542 U.S. at pp. 303-304.) The court again did not overrule Almendarez-Torres.

In a 2004 opinion, the United States Supreme Court once more recognized: "We have not extended Winship's protections to proof of prior convictions used to support recidivist enhancements. Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); see also Apprendi v. New Jersey, 530 U.S. 466, 488-490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (reserving judgment as to the validity of Almendarez-Torres); Monge v. California, 524 U.S. 721, 734, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998) (Double Jeopardy Clause does not preclude retrial on a prior conviction used to support recidivist enhancement)." (Dretke v. Haley (2004) 541 U.S. 386, 395 [124 S.Ct. 1847].) In U.S. v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738], the United States Supreme Court reaffirmed its "holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." (Id. at p. 244.)

In Shepard, the Supreme Court applied Taylor v. United States (1990) 495 U.S. 575 [110 S.Ct. 2143], a case that had held that "an offense constitutes 'burglary' for purposes of a [18 U.S.C.] § 924(e) sentence enhancement if either its statutory definition substantially corresponds to 'generic' burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant." (Id. at p. 602.) The question in Shepard was "whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary." (Shepard v. U.S., supra, 544 at p. ___ [125 S. Ct. at p. 1257.) In an opinion delivered by Justice Souter, the United States Supreme Court answered in the negative, holding that "enquiry under the ACCA [Armed Career Criminal Act] to determine whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." (Id. at p. ___ [125 S.Ct. at p. 1263].) Thus, "a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." (Id. at p. ___ [125 S.Ct. at p. 1257].)

In Shepard, the court's opinion made clear that "prior guilty pleas may establish ACCA predicate offenses" and the statute did not limit "prior convictions" to convictions stemming from jury verdicts. (Id. at p. ___ [125 S.Ct. at p. 1259]) In Part III of the opinion, which was joined by only Justices Stevens, Scalia, and Ginsburg, Justice Souter expressed a belief that that ACCA enhancement raised concerns under the Apprendi line of cases. (Id. at p. ___ [125 S.Ct. at p. 1262].) Justice Souter stated: "While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute." (Ibid.) Justice Souter concluded that "[t]he rule of reading statutes to avoid serious risks of unconstitutionality" "counsel[ed] [the Court] to limit the scope of judicial factfinding on the disputed generic character of a prior plea . . . ." (Id. at pp. ___ [125 S.Ct. at pp. 1262-1263].) In a separate opinion, Justice Thomas asserted: "Almendarez-Torres, like Taylor, has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. [Citations.]" (Id. at p. ___ [125 S.Ct. at p. 1264].)

These Supreme Court decisions do not directly decide the issue raised here, which is whether a juvenile adjudication of criminal wrongdoing is sufficiently analogous to a criminal conviction to come within the exception for "prior convictions" under the Apprendi line of cases or whether it is a fact subject to the constitutional jury trial guarantee. Defendant is not arguing that using juvenile delinquency adjudications to establish recidivism is unwise or is absolutely precluded by due process. If he had, we would find such contentions without merit.

An adult who commits a second offense following a juvenile adjudication that the individual, when a minor, violated a law defining a crime (see Welf. & Inst. Code, §§ 602, 725) is a repeat offender within the general meaning of the term. While some jurists may seriously question the wisdom of increasing adult punishment based on a previous juvenile adjudication of criminal wrongdoing, it is not the function of the courts to determine the wisdom of legislation. "The judiciary, in reviewing statutes enacted by the Legislature, may not undertake to evaluate the wisdom of the policies embodied in such legislation; absent a constitutional prohibition, the choice among competing policy considerations in enacting laws is a legislative function. (See, e.g., Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 129-130 . . . .)" (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53; see People v. Bunn (2002) 27 Cal.4th 1, 17 ["The judiciary may be asked to decide whether a statute is arbitrary or unreasonable for constitutional purposes . . . but no inquiry into the 'wisdom' of underlying policy choices is made"].) "Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts" (Ewing v. California (2003) 538 U.S. 11, 25) or state courts.

Furthermore, "[r]ecidivism has long been recognized as a legitimate basis for increased punishment. See Almendarez-Torres v. United States, 523 U.S. 224, 230, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (recidivism 'is as typical a sentencing factor as one might imagine'); Witte v. United States, 515 U.S. 389, 400, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) ('In repeatedly upholding such recidivism statutes, we have rejected double jeopardy challenges because the enhanced punishment imposed for the later offense . . . [is] "a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one" ' (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948)))." (Ewing v. California, supra, 538 U.S. at pp. 25-26.) Criticism regarding the wisdom of the three strikes law "is appropriately directed at the legislature, which has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme" and courts "do not sit as a 'superlegislature' to second-guess these policy choices" (Id. at p. 28.)

We stress that defendant's challenge is focused upon the Apprendi line of cases, which concerns the right of jury factfinding. The essential question before us is only whether defendant was constitutionally entitled to a jury trial on the three strikes allegation.

We think it is significant that Almendarez-Torres has not been overruled and that the Supreme Court has not limited Apprendi's prior conviction exception to convictions stemming from a jury trial. To the contrary, convictions arising from a court trial or a guilty plea may be the basis for an increased sentence. Shepard, which involved a prior conviction arising from a plea, strengthens rather than weakens our earlier analyses in Lee and Andrades. It suggests that the crucible of a jury trial is not the sine qua non of Apprendi's "prior conviction" exception. Instead, it is the certainty that constitutional procedural safeguards, including proof beyond a reasonable doubt, attached to a criminal conviction that excepts prior convictions from the general Apprendi rule.

The U.S. Supreme Court has determined that critical constitutional guarantees associated with traditional criminal prosecutions apply to juvenile proceedings. (See Breed v. Jones (1975) 421 U.S. 519, 541 [95 S.Ct. 1779] [criminal prosecution after an adjudicatory proceeding in juvenile court violates the double jeopardy clause of the Fifth Amendment, as applied to the states through the Fourteenth Amendment]; In re Winship (1970) 397 U.S. 358, 368 [90 S.Ct. 1068] [due process requires proof beyond reasonable doubt standard to be applied in the adjudicatory stage of delinquency proceedings]; In re Gault (1967) 387 U.S. 1, 33, 36-37, 41, 55, 57 [87 S.Ct. 1428] [juveniles in delinquency proceedings must be provided various procedural due process protections: notice of charges, right to counsel, privilege against self-incrimination, right of confrontation and cross-examination].) In finding jeopardy attaches when the juvenile court, as the trier of fact, begins to hear evidence at the adjudicatory hearing (Breed v. Jones, supra, 421 U.S. at p. 531), the Court observed: "[I]n terms of potential consequences, there is little to distinguish an adjudicatory hearing [in the juvenile court that results in a finding that a minor violated a criminal statute] from a traditional criminal prosecution." (Breed v. Jones, supra, 421 U.S. at p. 530.)

Although the United States Supreme Court has held that "trial by jury in the juvenile court's adjudicative stage is not a constitutional requirement" (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 545 [91 S.Ct. 1976] [plurality opinion]), the court in reaching this conclusion stated that "imposition of the jury trial on the juvenile court system would not strengthen greatly, if at all, the fact-finding function . . . ." (Id. at p. 547.) The court also noted that it had previously recognized in "dictum that a jury is not a necessary part even of every criminal process that is fair and equitable. Duncan v. Louisiana, 391 U.S., at 149-150, n. 14, and 158, 88 S.Ct., at 1447, and 1452." (Ibid.)

No argument has been raised in this appeal that defendant failed to receive the constitutional due process to which he was entitled in his prior juvenile proceeding. We stand by our conclusion in Lee and Andrades that a juvenile adjudication that a criminal offense has been committed comes within Apprendi's "prior conviction" exception so long as it comports with the constitutional procedural safeguards applicable to juvenile delinquency adjudications. In addition, although it may be inferred from Shepard that a sentencing court may not go beyond the conclusive judicial records of a prior juvenile adjudication to determine whether it meets that statutory definition of a "prior conviction" under three strikes law (See Shepard v. U.S., supra, 544 at p. ___ [125 S. Ct. at pp. 1259-1261), defendant makes no appellate claim that the sentencing court went beyond the record of adjudication in determining the truth of the strike allegation.

The judgment is affirmed.

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ELIA, J.

I CONCUR:

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PREMO, J.

RUSHING, P.J., Dissenting

I respectfully dissent as I did in People v. Lee (2003) 111 Cal.App.4th 1310, particularly as Apprendi v. New Jersey (2000) 530 U.S. 466 and U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187 apply to juvenile adjudications.

______________________________________

RUSHING, P.J.

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[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] We asked the parties to file supplemental briefing discussing whether this appeal must be dismissed for failure to obtain a certificate of probable cause. (§ 1237.5; Rules of Court, rule 30(b).) The record shows that the negotiated disposition left open the question whether defendant's juvenile adjudication qualified as a strike, the determination of which impacted postsentence credit (see §§ 667, subd. (c)(5); 1170.12, subd. (a)(5), 2933). Since the agreed sentence could be reached in two ways depending upon resolution of the impliedly reserved three strikes issue, we agree that the issue is outside the plea bargain and does not constitute an attack upon its validity even though ordinarily "when the parties agree to a specified sentence, any challenge to that sentence attacks a term, and thus the validity, of the plea itself" (People v. Buttram (2003) 30 Cal.4th 773, 789).

[3] Three strikes law sets forth the statutory requirements for a prior juvenile adjudication to qualify as a strike. (§§ 667, subd. (d)(3); 1170.12, subd. (b)(3).)